Two men convicted of crime who served long sentences before being freed by the Court of Appeal are fighting potential landmark cases for compensation.
They are asking the High Court to rule that UK law is incompatible with the European Convention on Human Rights (ECHR) because it wrongly restricts compensation in “miscarriage of justice” cases.
Their judicial review challenges are the first to be brought against the coalition government’s decision last year to narrow eligibility for an award.
The first applicant is Sam Hallam, who served over seven years for murder after being ordered, as a youth, to be detained at Her Majesty’s pleasure for a minimum term of 12 years.
The second is Victor Nealon, who was given a life sentence for attempted rape. He served 17 years in jail – 10 more than the seven-year minimum term – after he persisted in claiming he was innocent.
Both men were set free after appeal judges ruled fresh evidence made their convictions unsafe.
Heather Williams QC, appearing for Mr Hallam, said the Criminal Justice Act 1988 which governs compensation payments was amended last year in a way that made it “incompatible with the presumption of innocence” in article 6(2) of the ECHR.
A narrower definition of miscarriages of justice than the previous version was inserted in March last year into the 1988 Act through the Anti-social Behaviour, Crime and Policing Act 2014.
Applicants for compensation now have to satisfy the Justice Secretary that “a new or newly discovered fact shows beyond reasonable doubt” that they did not commit the offences for which they were jailed.
The QC told Lord Justice Burnett and Mrs Justice Thirlwall at London’s High Court: “This means in effect that the applicant has to prove his innocence, and the Secretary of State has to assess whether he has established his innocence.”
Decisions of the European Court of Human Rights in Strasbourg showed that such a criterion was “not permissible”.
Lawyers for the Justice Secretary are arguing that the Supreme Court has already decided that article 6(2) is not engaged, but even if it was the current rules on compensation do not infringe the presumption of innocence.
Mr Hallam was arrested after a gang of youths attacked Essayas Kassahun, who died two days later, on October 11 2004.
Mr Hallam, then aged 17, was convicted of Mr Kassahun’s murder, conspiracy to commit grievous bodily harm and violent disorder.
But in May 2012 – seven years and seven months into his sentence – appeal judges decided all three sentences were unsafe.
They ruled that new evidence, in the form of timed and dated mobile phone photographs, dramatically undermined accusations that Mr Hallam had deliberately concocted a false alibi.
But the Ministry of Justice (MoJ) rejected his application for compensation for miscarriage of justice in August 2014 on the grounds that the phone evidence had been partly, if not wholly, attributable to Mr Hallam himself.
The MoJ also said the new evidence did not show “beyond reasonable doubt that Mr Hallam did not commit the offence….”
In the case of Mr Nealon, he was originally convicted of attempted rape on January 22 1997 at Hereford Crown Court and sentenced to life.
His conviction was quashed in December 2013, four years after a DNA test pointed to ‘an unknown male’ – not Nealon – as being the likely assailant.
Although denied legal aid, he was determined to receive compensation for the 17 wasted years spent in jail and the trauma he continued to suffer.
But in June 2014, the Ministry of Justice rejected his application on the grounds that the DNA analysis “did not show beyond reasonable doubt that the claimant did not commit the offence”.
The hearing continues tomorrow.